Archive | Barnes RSS for this section

CoA: State had no authority to bring paternity action for stillborn baby

In what is an ultimately very sad case involving the stillborn birth of a baby to a barely teenage girl, the Court of Appeals found that neither the assignment of the matter to the State under Title IV-D of the Social Security Act or Indiana’s paternity statutes, provided an avenue for the State to bring an action to establish paternity. Here, the mother simply wanted to confirm who the father of her child was and was not seeking any other benefit or monetary amount.

Since Title IV-D’s purpose is to enforce support obligations and the paternity statutes are there to provide “proper care, maintenance, education, protection, support and opportunities” to the child, there was no interest or authority for the State to file an action for paternity. This did not mean, however, the mother could not do so on her own.

www.in.gov/judiciary/opinions/pdf/05081401mgr.pdf.

UIM policy could be set off by Worker’s Compensation recovery, but not below state minimum

The CoA’s opinion is filed in the ever-expanding catalog of cases relating to under-insured motorist (“UIM”) coverage.

The issue is relevant in light of the Indiana Supreme Court’s recent ruling in Justice v. Am. Family Mut. Ins. Co., 4 N.E.3d 1171, 2014 Ind. LEXIS 196 (Ind. 2014). In fact, the Court of Appeals relies on that decision in reaching its conclusion here.

In this case, the spectacularly surnamed Christine Anderson was in a motor vehicle accident during the course of her employment. The at-fault driver had $25,000 in coverage, which was paid in full, and Anderson received $81,166.15 in worker’s compensation (“WC”) benefits since she was on the job. She had at the time a UIM policy with limits of $100,000. Thus, she sought $75,000 for the remaining UIM coverage.

Indiana Insurance argued that the UIM policy limit was set off by the WC benefit since it exceeded the $75,000 in remianing UIM coverage. This would mean that coverage would be reduced from the policy limits rather than the total damages (e.g. if Anderson had $300,000 in damages, she argues that the amount she received in WC benefits should be deducted from the $300 number instead of the $75K in coverage).

The Court of Appeals sided with Indiana Insurance on this point, holding that policies generally provide for when a setoff is to be made against damages rather than limits of liability and the use of the word damages in other areas of the policy is evidence that the insurer did not intend for the setoff to apply to damages if another word is used.

Paragraph E mentions “element of loss” and does not mention damages. Further, the portion of the Policy addressing underinsured motorists coverage uses the term “damages” on other occasions. Also, similar to Am. Econ., Paragraph E falls under the section titled “LIMIT OF LIABILITY.”  Unlike Tate, the Policy defines an “[u]nderinsured motor vehicle” as one for which the sum of the limits of liability under all bodily injury liability bonds or policies applicable at the time of the accident is either: “1. Less than the limit of liability for this coverage; or 2. Reduced by payments to persons, other than ‘insureds’, injured in the accident to less than the limit of liability for this coverage.” Appellant’s Appendix at 163. Based upon Paragraph E, we cannot say that the trial court erred to the extent that it reduced the amount Anderson received from worker’s compensation from the Policy limit.

The Court of Appeals did however hold that under the recently published Justice case, the insurer could not apply WC benefits to reduce the UIM benefit below the state mandated minimum of $50,000.  In citing that case, the Court found the following language dispositive: “[i]f [the underinsured motorist] had carried the required amount of liability insurance, [the insured] would have received $50,000, and the purpose of our uninsured/underinsured motorist statute is to put him in that position.” 4 N.E.3d at 1179. Thus, no matter whatever the WC benefit Anderson received, she was entitled to $50,000 in UIM coverage.

Accordingly, the Court of Appeals upheld summary judgment by the trial court on the issue of the setoff but reversed summary judgment on the issue of the recoverable UIM benefit.

www.in.gov/judiciary/opinions/pdf/05021401ebb.pdf.

Bad faith finding reversed where there was no obligation to produce evidence detrimental to Plaintiff

At trial on a UIM claim, GEICO’s counsel found out days before the trial that one of the plaintiffs, a doctor, had been charged with obtaining controlled substances by fraud in Florida. The information was raised on cross examination of that plaintiff.  After a verdict for one of the other plaintiffs, plaintiffs moved for a finding of bad faith for not presenting the evidence before trial, pursuant to Ind. Code § 34-52-1-1. The trial court granted the motion and GEICO appealed.

The Court of Appeals reversed on the basis that there was no discovery request for the information compounded by the fact that the plaintiff doctor knew of the information and elected not to disclose it to his attorney.

www.in.gov/judiciary/opinions/pdf/04171401ebb.pdf.

Tax deed upheld where purchaser properly sent notices via certified mail

IN CoA reversed grant of summary judgment in favor of original homeowner and against tax deed purchaser. Purchaser of tax deed was required only to send notice via certified mail, not request a return green or follow up on service, to provide notice of redemption period and then to provide notice that redemption period has expired.  Such service was deemed constitutionally sufficient to provide notice.

www.in.gov/judiciary/opinions/pdf/03061402mgr.pdf.

Trial court may order installment payments of judgment in excess of 7 year term

In action to suspend driver’s licenses of two judgment defendants, trial court did not err in amending judgment to installment payments and reinstating driving privileges of said defendants under Ind. Code § 9-25-6-6. Trial court also had discretion to make the installment longer than 7 years even though statute permits suspension of driving privileges only within 7 years of failure to satisfy judgment. Statute was clear and unambiguous and did not set time limit on installment payments.

See McGee v. McGee, 998 N.E.2d 270, 271 (Ind. Ct. App. 2013) (“[I]t is as important to recognize what a statute does not say as it is to recognize what it does say.”). If we were to interpret the statute in the manner in which NIPSCO suggests, we would be adding a requirement to the statute that is not there. We cannot and will not do that. See id. at 272.

TOPS v. IN DOE

Indiana Department of Education removed TOPS from its list of approved SES providers. TOPS appealed the determination and the DOE sent a letter affirming the decision. The letter did not contain any factual findings regarding its decision, nor did it reference any other document that would contain such findings. TOPS then filed for judicial review and the DOE moved to dismiss, stating that the letter was a final order and thus TOPS was obligated to submit the entire agency file to the trial court for review. The trial court granted the motion and TOPS appealed.

While the CoA admonished TOPS for not attaching the entire file for judicial review, it was not fatal to TOPS’s case. In fact, TOPS’s oversight was minimal compared to the DOE’s. In a strange bout of “let’s hope no one notices,” the DOE attempted to argue on appeal that the order was not final but rather “purported” order, even though the basis for dismissal at the trial level was that the order was final, thereby necessitating TOPS to attach the entire record. The CoA caught the inconsistency and ruled that DOE did not argue this to the trial court and therefore could not raise the argument for the first time on appeal. The DOE had advanced the argument because a final order is indeed required to contain findings of fact.

Under AOPA, a final order by an administrative agency must present written findings of fact, including ‘findings of ultimate fact . . . accompanied by a concise statement of the underlying basic facts of record to support the findings’ as well as ‘conclusions of law for all aspects of the order.’ Pack v. Indiana Family & Soc. Servs. Admin., 935 N.E.2d 1218, 1222 (Ind. Ct. App. 2010) (quoting Ind. Code § 4-21.5-3- 27(b) & (c)).

Thus, the cause was remanded to the administrative level where the DOE will be given the opportunity to support its decision with findings of fact and conclusions of law.

www.in.gov/judiciary/opinions/pdf/02141402mpb.pdf.

Local fraternity potentially liable for personal injuries from hazing but not national fraternity or university

In today’s decision, the Indiana Supreme Court addressed several questions relating to duty and the safety of college students. The analysis can be broken down as follows:

  1. Wabash College: Wabash College was not liable under a premises liability theory since its tenant, the local fraternity, maintained exclusive control and possession of the premises where the injury occurred. The school’s promulgation of a policy against hazing was insufficient to create an assumed duty as it “did not extend to direct oversight and control of the behavior of individual student members of the local fraternity.” In other words, it discouraged hazing and offered educational outreach but did not police it in such a way that it failed in its undertaking to protect Yost. Finally, the local fraternity was not the agent of Wabash since “mere consent to governance does not equate to agency.”
  2. National Fraternity: the  Fraternity similarly lacked liability on the theories of assumed duty and agency and the reasoning mirrored that which was applied to Wabash.
  3. Local Fraternity: the local fraternity did bear liability because there were sufficient facts to show that the fraternity may have assumed a duty of care of Yost in that it may have assumed supervisory services upon which Yost relied.

www.in.gov/judiciary/opinions/pdf/02131401bd.pdf.

IN CoA reverses trial court’s judgment to pierce corporate veil

“Country Contractors, Inc. (“Country”) entered into a contract to provide excavation services for A Westside Storage of Indianapolis, Inc. (“Westside”). Country subcontracted out a substantial portion of the work and eventually left the worksite without completing the job.” Westside filed for breach of contract and slander of title against Country and its two shareholders, the Songers.

On March 11, 2013, the trial court issued its findings, conclusions, and judgment in favor of Westside against Country and against the Songers personally. The $117,542.20 damage award consisted of $51,162.86 in additional costs to complete the Westside project; $14,959.34 in prejudgment interest; $17,500.00 in attorney’s fees; and $33,920.00 in damages for delay of the project caused by Country’s breach.

On the issue of piercing the corporate veil, the CoA did not upset the finding that the corporation was substantially under-capitalized or that the shareholders did not observe corporate formalities. Rather, the focus was on the nexus between any of the elements of piercing the veil and the alleged resulting injustice. Here, the CoA could find no such nexus and so the judgment of the trial court was reversed.

With respect to the slander of title claim, Country and its subcontractor filed liens against Westside for teh same invoiced work. The sub then resolved its lien with Westside and recorded its release. Country filed its lien after the release was filed and had no independent work of its own to claim the lien. Thus there was sufficient evidence to support a slander of title claim and the award of attorneys fees was appropriate enough not upset the trial court’s discretion.

Finally, the award for delay damages was reversed as speculative.

www.in.gov/judiciary/opinions/pdf/02121401tac.pdf.

Andrews v. Mor/Ryde International (1-29-14)

CoA: Pyle; Crone concurs & Barnes dissents w/ sep. opinion

In action for bad faith by sales representative against former principal, CoA affirms trial court’s ruling that punitive damages provided by Ind. Code § 24-4-7-5 (in the Indiana Sales Representative Act) are subject to the heightened burden of proof and distribution standards provided by Indiana’s civil punitive damages statute (Indiana Code §§ 34-51-3-2 and 34-51-3-6).

Both the majority and dissenting opinions noted the absence of the legislature’s guidance on how punitive damages should be handled under the ISRA.

www.in.gov/judiciary/opinions/pdf/01291402rrp.pdf.

Reed v. Bethel (1-24-14)

CoA (Pyle; Barnes & Crone concur). Evidence objections at trial

www.in.gov/judiciary/opinions/pdf/01241401rrp.pdf.

%d bloggers like this: